Question

Cobargo Go Karts have been trading for over 10 years and operates in a small regional town in NSW. There are very few attractions and activities for the local community, but one thing is certainly popular, it is the Cobargo Go Karts. They operate both 125cc and 250cc Go Karts in an open track which is basically a converted former paddock. The track might best be described as made from bitumen (the same type of surface used on roads). There is evidence of lots of bumps and repairs of the surface.

There is full time counter staff of between 1 to 3 persons, and 8-10 persons who supervise and control the running of the go kart races, depending on the time and day of the week. Most of the track supervisors who manage races are young teenagers themselves and receive very little (sometimes no) induction training. There are no Operating or Safety Procedures or policies in place, and while the go karts are regularly serviced (to remain functional) very little else is attended too, especially the track and maintenance of the piles of rubber tyres used as barriers on the edge of the track.

The track is especially popular on weekends and the local high school even takes students to the track once a week on a Tuesday as part of sport. The operators of the track recently spent over $30,000 on an electronic device system, which times, and displays the results of each race on a large LED display board. This adds to the competitive nature of participants and most users try to either beat the ‘best time’ of the track for the week or beat they’re our ‘personal best-time).

Late last Saturday afternoon, during one of the events, Mary O’Connor, a girl aged 15 years suffered a terrible injury. Mary had very long hair which was of a length which reached half-way down her back. While she was wearing a helmet (supplied to each rider), but her hair was not secured sufficiently within the helmet. During one of the races, her hair became loose from under the helmet and flowed freely out the back for at least one full lap of the course. Then, there was a pile up of five go karts and Mary’s go kart was caught amongst it. Her long hair somehow got caught in the motor mechanisms of one of the Go Karts and as a result, large portions of Mary’s hair was ripped from her head and severe damage, requiring surgery occurred.

Mary was rushed to hospital and hospitalized for over a week, suffering damage to her scalp which include permanent scaring. Moreover, she was traumatized over the incident and is requiring ongoing psychological counselling.

Mary’s parents are considering suing the owners and operators of the Cobargo Go Kart track for one-million dollars, for pain, loss, and suffering, including medical expenses and have come to you for advice.

On closer review of the operation of the go kart track, it was found that approval to operate as a Go Kart track had never been granted Council Approval by Cobargo Local Council. Moreover, this is not the first instance where users of the track have been injured, especially from collisions and where drivers have run off the track and heavily hit the barrier walls. Although no records of injury or incidents have been kept, it has been suggested by users of the go kart track that they know of at least six other incidents resulting in injury and hospitalization.

Question: Regarding a possible claim for negligence, advise Mary’s parents of her legal position to seek remedy. Fully explain each element of a claim for negligence relevant in this case.  

Answer should be approximately 800-900 words. Use of the IRAC system of case analysis is Must

Answer 1

Answer:-

Mary's parents will succeed in a negligence suit against Cobargo Go Karts

The legal issues are;

Does Cobargo Go Karts own Mary a duty of care?

Is there a breach of duty?

Does the breach of this duty result in Mary's injury?

Detailed Explanation:-

The tort of negligence refers to a legal wrong that is suffered by someone at the hands of another who fails to take care to avoid what a reasonable person would regard as a foreseeable risk. For a tort of negligence to proved there are three elements to be fulfilled in order to bring successful claim. These are;

Duty of care exists

There is breach of the duty of care

Damage or loss occurred due to the breach

In order to prove existence of a duty of care a plaintiff must prove the three fold test to determine a duty of care existed.These test was set in Caparo Industries plc v Dickman(1990). These are;

Harm must be a reasonably foreseeable result of the defendant's conduct

A relationship of proximity exist

It must be fair, just and reasonable to impose liability

In determining if there is a breach of that duty,the courts usually consider the standard of care that is expected of a reasonable person to take. If the defendant fails to meet this standard then the defendant is in breach of that duty.

In Donoghue v Stevenson (1932) case a claimant bought and drank from a bottle of ginger beer in a cafe and a dead snail was found in the bottle.She subsequently fell ill and sued.The house of lords found the manufacturer owed a duty of care,which was breached leading to her illness.The defendant must prove that they were owed a duty of care, and that there was a breach of the duty leading to loss or injury.

The third element is that the plaintiff has suffered a loss or damage as a direct consequence of the defendant's breach of his duty of care. They must prove that if it had not been for the actions of the defendant,he would not have suffered loss or damage.

In Spartan v Martin & Co case, the court determined that there must be causation established and it must not be too remote to the actions of the defendant.

Conclusion;In this case,Cobargo Go Karts owes its customers a duty of care since they have a contract and harm is reasonably expected. They breach this duty by failure to provide trained supervisors,thorough servicing of the Carts and failure to provide safety measures to reduce risk of accidents. The supervisors fail to secure Mary's hair in the helmet and this leads to the accident. Thus the injury suffered by Mary is as a result of Cobargo Go Karts' negligence and thus are liable for Mary's injury and must pay damages.

References

Trindade, F. A., & Cane, P. (1985). The law of torts in Australia. Oxford University Press, USA.

Winfield, P. H. (1934). Duty in Tortious Negligence. Columbia Law Review, 34(1), 41-66.

Owen, D. G. (2006). The five elements of negligence. Hofstra L. Rev., 35, 1671.